Section 198(1) r/w s. 198(2) of Cr.P.C. inconsistent with Art. 14 of the
By Arjun Chaturvedi
The term "adultery" has its origin in the Latin term adulterium. It is understood as a voluntary sexual action by a married person with another married or unmarried individual. Almost every religion condemns it and treats it as an unpardonable sin. However, this is not reflected in the penal laws of countries. Nevertheless, all the legal systems invariably do recognize it as a ground for seeking divorce from the errant spouse.
Section 497, IPC defines and deals with the offence of “adultery” in the following manner.
“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rap, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.”
An analysis of the first half of the above Section contemplates the following essentials for constituting the offence of “adultery” -:
Procedure for prosecution of the offence of “Adultery”
Section 198(1) read with s. 198(2) of the Criminal Procedure Code (Cr.P.C.) provides a comprehensive prosecution procedure in respect of the offence of adultery as defined u/s 497, IPC. Therefore, s.497, IPC and s. 198, Cr.P.C. need to be read cogently and conjointly.
Section 198 of the Cr.P.C., reads as follows:
“Prosecution for offences against marriage. –
(1) No court shall take cognizance of all offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
(a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf,
(b) Where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf,
(c) Where the person aggrieved by an offence punishable under 3[section 494 or section 495] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's, brother or sister 4[, or, with the leave of the court, by any other person related to her by blood, marriage or adoption].
(2) For the purpose of sub-section (1), no person other than the husband of the woman, shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf.”
Sub-sections (1) and (2) read with the proviso below sub section (2) of s.198, Cr.P.C. provides inter alia, that for the prosecution of an offence punishable under Section 497,IPC the husband of the women/adulteress, or in his absence, some one who had care of the women/adulteress on his behalf at the time when the offence in question was committed, shall be deemed to be an aggrieved person and only they would be considered as competent to file a complaint against the offence.
Sections 198, Cr.P.C. and 497, IPC – Whether Discriminatory
The question of constitutional validity of these two sections read together is repeatedly raised based on the following two grounds:
· Section 198(1) read with (2), Cr.P.C, 1973 does not provide a chance to the wife to prosecute against her disloyal and adulterer husband.
· Section 198(1) read with (2), Cr.P.C., 1973 read with s.497, IPC provides chance only to the husband (of the disloyal wife) to file a case against the party who had participated in voluntary sexual intercourse with his wife but, does not provide an analogous right to the wife (of the disloyal husband) to prosecute against the married woman who had participated in voluntary sexual intercourse with her husband.
Situations similar to the above discussions have already cropped up for decision before the Honorable Supreme Court since 1954. The matter is well settled that the law relating to the offence of adultery is not contrary to the Articles 14 and 15 of the Constitution.
In Yusuf Abdul Aziz v. State of Bombay,the appellant was prosecuted u/s 497, IPC. He applied to the High Court of Bombay on making a complaint to determine the constitutionality of section 497 under article 226 of the Constitution of India. The High Court decided against him. In the facts and circumstances of the case, a learned 3-member bench of the Supreme Court held, inter alia, as follows:
“Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in section 497 of the Indian Penal Code. “
The question was again dealt in Sowmithri Vishnu v. Union of India where again a writ petition was filed challenging the constitutionality of s.497 (vis-a-vis Arts.14 and 15) saying that it did not confer upon the wife a right to prosecute the woman with whom her husband was having illicit relations. The Court dismissed the argument and held the section as constitutionally valid.
Both the questions raised above were raised by a petitioner (a wife) in the similar case of V. Revathi v. Union of India and Others. But the court upheld the decision of Sowmithri Vishnu’s case and dismissed the argument.
The first argument raised in Revathi’s case was similar to the one raised in this case that the wife is not given a right to prosecute her husband. To understand why the Supreme Court dismissed this argument one must not only understand the section itself but also the rationale behind the framing of this section. When we see the wordings of the Section 497 we find that the argument is true and the wife is not provided with a right to prosecute against her husband however, it does not make the section constitutionally invalid as there is no discrimination as even the husband does not have a right to prosecute her disloyal wife.
It was observed in V. Revathi by Thakkar J.:
“The argument in support of the challenge is that whether or not the husband has the right to prosecute the disloyal wife, the wife must have the right to prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife has been disloyal to him has no right under the law to prosecute his wife, inasmuch as by the very definition of the offence, only a man can commit it, not a woman. The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social goods will be promoted by permitting them to 'make up' or 'break up' the matrimonial tie rather than to drag each other to the criminal court. They can either condone the offence in a spirit of 'forgive and forget' and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing divorce. They are not enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent. Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence. For, the court is not the arbiter of the wisdom or the philosophy of the law. It is the arbiter merely of the constitutionality of the law.”
We have to understand that in
Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit. The community punishes the 'outsider' who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring 'man' alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex.
Thus, we observe that the first
argument holds no substance as there is no discrimination based on sex but the
law is equal for both men and women and hence, there is no violation of Art. 14
of the Constitution of
As to the second question of why the wife (of the disloyal husband) is not given a right to prosecute against the married woman who had participated in voluntary sexual intercourse with her husband while an analogous right has been conferred upon the husband(of the disloyal wife). While trying to answer this argument one has to understand the rationale behind the sections (497, IPC and 198, Cr.P.C.).
The petitioner in V. Revathi’s case argued that she should
be given the right to prosecute the married woman as a similar right has been
provided to men (as they can prosecute the married man having sexual
intercourse with their wife) but what she was unable to comprehend is that this
provision is not a discrimination against her on the basis of sex but it
is a discrimination against the men and in favor of the women in order to
protect the disloyal wife. This is a special provision which has been
catered out especially for the females in their favor and not against them. As
this provision makes a special provision for women, it is saved by Art. 15(3)
of the Constitution of
“Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children y the clause (3) of Art. 15. Arts. 14 and 15 thus read together validate the last sentence of s.497, IPC, which prohibits the women from being punished as an abettor of the offence of adultery.”
Art.15 (3) recognizes the fact
that the women in
It might be argued that the status of women has improved in our country and they do not require any favoring laws or provisions, but this is only a delusion and far from the truth. With the exception of the Metropolitans and perhaps certain other cities the status of the vast feminine population inhabiting the rural areas is still the same as it was a 100 yeas ago.
Lastly when we come to the jurisprudential aspect of the section we see that we have basically two philosophy regarding law and morality. One is by H.L.A. Hart in his book “Concept of Law” and other given by L.L. Fuller in his book “The Morality of Law”. Hart speaks of Legal Positivism which means that law can be separated from ethics and morality. According to him Law has nothing to do with morality and ethics but it is set of rules or norms designed in order to put a check on the society. Whereas Fuller says that law is nothing but an instrument to enforce morality. Laws are made to inculcate morality in human behaviour. This controversy is also known as HartFuller Controversy. There are many debates on this issue. Some legal philosophers agree on Hart philosophy whereas some agree on Fuller’s.
But it is generally observed that Fuller’s point of view is accepted more widely as Law as a principle has emanated from the formation of the society and one of the basis of society is morality. Thus, we see that law has to be guided by the principles of morality. In the present scenario also that due to the existing conditions in the Indian Society it is a moral obligation on the state to protect the interests of women. Even on the question of spouses not being able to prosecute each other it is due to the philosophy of marriage prevalent in our society which makes it immoral for the spouses to initiate proceedings for a dispute against each other.
Thus, it can be concluded that there can be no doubt regarding the constitutional validity of the section.